Branch v. Emery Transp. Co.
| Decision Date | 26 December 1958 |
| Docket Number | No. A--654,A--654 |
| Parties | Robert BRANCH, by his Guardian ad litem, William Branch, William Branch, individually, and Velma Branch, Plaintiffs-Respondents, v. EMERY TRANSPORTATION CO., a corporation, and Calvin Carl, Defendants-Appellants. |
| Court | New Jersey Superior Court — Appellate Division |
George Y. Schoch, Trenton, argued the cause for appellants (Irving H. Lewis, Trenton, attorney).
William Bruder, Elizabeth, argued the cause for respondents (Donald Steinberg, Elizabeth, of counsel).
Before Judges GOLDMANN, CONFORD and HANEMAN.
The opinion of the court was delivered by
HANEMAN, J.A.D.
Defendants appeal from a judgment of the Union County District Court entered upon a jury verdict. Defendants admitted liability; thus, the sole issue at the trial was the quantum of plaintiffs' damages. The matter is brought up on a statement of the evidence at the trial, settled by the trial court under R.R. 1:6--3.
Two grounds for reversal are urged by defendants: (1) the trial court committed prejudicial error in overruling defense objections and permitting plaintiffs to testify concerning injuries not set forth in answers to interrogatories, and (2) the verdicts are excessive.
The pertinent questions propounded by defendants in interrogatories on pretrial discovery and the answers given by plaintiffs to each are as follows:
'2. State specifically the exact nature of all of the injuries and conditions allegedly sustained by you as a result of the accident mentioned in the complaint, giving the parts of your body affected thereby.
'2. Injury to the right shoulder girdle, right sacroiliac joint, injury to the left knee, as to William Branch. As to Robert Branch--multiple contusions of the body. As to Velma Branch--injury to the right neck, right shoulder, injury to the muscles of the back whip lash injury to the neck, strained muscles of the right shoulder girdle.
'8. If you contend that you have not entirely recovered from any of the said injuries and conditions, state the exact nature of the injuries and conditions which you are suffering from at the present time.
'8. No permanent injury as to Robert. Velma Branch still suffering from injuries to the muscles of the back. William Branch still suffering from injuries to right shoulder girdle.
'9. If you contend that you have sustained permanent injuries or suffer from permanent conditions as a result of the accident, state precisely the nature of the same.
'9. William--Permanent injury to shoulder girdle.
Velma--Permanent injury to muscles of the back.'
At the trial William Branch (William) testified that the impact of the collision caused a hurt to his right arm and left knee. At the trial he complained of severe pain in his lower back and in his right arm and shoulder. The physician who treated William testified that he diagnosed William's injuries as strained muscles of the right forearm and shoulder and strained ligaments and muscles of the lower back. His treatment of William covered a period of less than one month. The physician testified that on his last visit, William complained of some pain in his lower back but that he (the physician) felt that further treatment was neither necessary nor beneficial.
Velma Branch (Velma) testified that she suffered injuries to her right leg, right arm and lower back. Her complaints at the trial were of a continual pain in her right leg and right arm. She denied any injury to her back, in contradiction of her prior testimony, but later re-affirmed a claim of injury to her lower back. Her treating physician initially diagnosed her ills as a strain of the muscles of the neck with pain on motion of the neck and pain in the lower back.
Velma also testified concerning the residual effect of the injuries suffered by her minor son, Robert Branch (Robert). On this score she related that Robert had been extremely nervous since the accident and was unable to sleep at night. Robert's treating physician testified that the child suffered no residual effect from his injuries.
Defendants made a timely objection to the testimony at the trial on all matters which are at variance with the answers given by the parties to the interrogatories. Each objection was overruled and the parties were permitted to testify as noted above.
The discrepancies between the answers to interrogatories and the actual testimony is as follows:
Injuries exhibited by
Testimony
Answers to Answers to Answers to of
Interrogatory Interrogatory Interrogatory treating Testimony of
#2-Original. #8-Present. #9-Permanent. physician. Plaintiffs.
--------------- ------------- ------------- -------------- ---------------
William:
---------------
Right shoulder Right Shoulder Strained Right arm
girdle, right shoulder girdle. muscles in left knee.
sacroiliac girdle. right shoulder
joint, left and right
knee. forearm,
strained
ligaments and
muscles, lower
back.
Present
and Present and
Permanent: Permanent:
-------------- ---------------
No further Right arm,
treatment right shoulder,
necessary or lower back.
beneficial.
Velma: Original:
--------------- ---------------
Right neck, Muscles Muscles Muscles of Right leg,
Right shoulder, of back. back. of back, right arm,
muscles of muscles of lower back.
back. Whiplash neck.
to neck, Present and
strained Permanent:
muscles right ---------------
shoulder Pain, right
girdle. arm, pain,
right leg.
Contradiction
on pain in
back.
Present
and
Robert: Permanent: Present:
--------------- -------------- ---------------
Multiple None. No answer. No residual Sleepless and
contusions. effects. nervous.
The jury returned verdicts of $3,011 in favor of William Branch; $1,400 in favor of Velma Branch, and $1,000 in favor of Robert Branch by his guardian Ad litem.
Counsel agree that on May 16, 1958 the trial court scheduled the case for trial on June 12, 1958; that on May 19, 1958 defendants requested and plaintiffs consented to a medical examination by a physician designated by defendants; that on May 28, 1958 defendants were advised that the examination had not been accomplished; that plaintiffs asserted at that time that the failure could not be attributed to them but, rather, was attributable to defendants' physician, who was unable to schedule plaintiffs' visit earlier because of the pressure of his practice; that on May 28, 1958 the physician advised that his earliest open date was June 20, 1958, and that the cause was tried on June 12, 1958, without any motion for continuance or objection by defendants.
In support of the ruling below, plaintiffs argue first, as they did at the trial, that the facts of this case bring it within the exception to the usual rule regarding the imposition of sanctions, in that the conflicts between the testimony and the answers to interrogatories resulted from a clerical mistake in the preparation of the answers, whereby the claimed permanent injuries sustained by William and Velma were inadvertently transposed. Thus, it is argued, there is absent design to mislead or conceal.
Second, plaintiffs argue, the answer to interrogatory No. 2 above, apprises defendants of the scope of the original injuries claimed by plaintiffs, which were the same injuries as were testified to at the trial and, therefore, that there is no surprise.
Third, plaintiffs argue, if prejudice resulted to defendants the onus should not be laid at plaintiffs' doorstep because defendants did not avail themselves of the opportunity to have a physical examination made of plaintiffs prior to the trial, which permissive pretrial discovery would have made the discrepancies apparent.
It is clear from an examination of the proofs adduced at the trial that there was a substantial variance between the testimony and the answers to interrogatories insofar as those matters relate to the injuries suffered by the several plaintiffs, and that plaintiffs knew or should have known of the variance more than 10 days prior to the trial.
The major issue we are asked to rule upon is whether the trial court should have imposed a sanction which would have limited plaintiffs...
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